State v. Lee

• Citation: 87 P. 977,34 Mont. 584
• Parties: STATE v. LEE.
• Decision Date: 14 December 1906
• Court: Montana Supreme Court

87 P. 977

34 Mont. 584

STATE v. LEE.

Supreme Court of Montana

December 14, 1906

Appeal from District Court, Silver Bow county; Hon. Michael Donlon Judge.

Marion Lee was convicted of robbery, and, from the judgment and from an order denying a new trial, he appeals. Affirmed.

Milburn J., dissents.

Maury & Hogevoll, for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

BRANTLY C.J.

The defendant was heretofore convicted of the crime of robbery but, on appeal to this court, the judgment of conviction was reversed because of a variance between the allegations in the information and the proof as to the name of the person injured. State v. Lee, 33 Mont. 203, 83 P. 223. When the case was remanded, he was tried on an amended information, and again convicted. He has appealed from the judgment and from an order denying him a new trial.

Counsel for appellant assign and argue in their brief many alleged errors, four of which are upon one instruction submitted and others refused, and hence are presented by the record proper, or judgment roll, while the rest are sought to be presented by a bill of exceptions and what purports to be the record of the proceedings of the former trial, copied into the transcript without authentification. The Attorney General insists that the matters embodied in the bill of exceptions and the record of the former trial may not be considered, for the reason that it does not appear affirmatively that the two days' notice of the county attorney of the presentation of the bill to the judge, or to the clerk for the judge, for settlement, required by section 2171 of the Penal Code, was given, and that the record of the former trial is no part of the record of the trial of this cause.

The record before us does not disclose anything on the subject of notice to the county attorney of the settlement, and, under several decisions of this court directly in point, the bill must be disregarded. State v. Gawith, 19 Mont. 48, 47 P. 207; State v. Moffatt, 20 Mont. 371, 51 P. 823; State v. Stickney, 29 Mont. 523, 75 P. 201; State v. Kremer, 33 Mont. ___, 85 P. 736; State v. Morrison, 34 Mont. 75, 85 P. 738.

The record of the former trial copied into the transcript, not being authenticated by bill of exceptions or identified in any way, cannot be considered for any purpose. At the hearing counsel for defendant offered to amend the transcript by attaching thereto orders of the court extending the time for settling the bill, made subsequent to the judgment, which show that the county attorney was present and took part in the proceedings had at the settlement, and asked to be allowed to make the amendment. The request was denied by the court, for the reason that these orders are not a part of the record and do not supply the deficiency.

This condition of the record leaves for consideration only the particular instructions complained of. Touching the credibility of witnesses and the functions of the jury in weighing their evidence, the court gave the following instruction: "No. 8. A witness is presumed to speak the truth; this presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by the evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence. You are the exclusive judges of the weight of the testimony and the credibility of witnesses. You are to determine what weight you will give to the testimony of any witness, and you will be slow to reject the testimony of any witness, and be careful, and, if you can reconcile any statement and all the testimony or any of the testimony of any witness with the facts and with the probable motives, it will be your duty to do so, but, if you should be satisfied that any witness has knowingly and willfully testified falsely to any material matter in this case, you have the right to reject the whole of the testimony of such witness, unless on any point such testimony is corroborated by the facts and circumstances of the case or other credible evidence." It is said that the last clause of this statement is, in effect, a direction to the jury that they could not reject any of the testimony of a witness who had committed deliberate perjury during the trial, if upon any point, however unimportant, he was corroborated by other credible evidence in the case, but that in such case they must accept and give it credit.

In Cameron v. Wentworth, 23 Mont. 70, 57 P. 648, it was said: "It is undoubtedly the rule that, where a witness has willfully sworn falsely as to any material matter upon the trial, the jury is at liberty to discard his entire testimony, except in so far as it has been corroborated by other credible evidence." Here the power of the jury to reject such evidence absolutely and without consideration is limited to that portion of it which is not corroborated. Such portion of it as is corroborated, the jury may not reject without consideration, but must weigh it in the light of the other evidence and attach to it such value as they think it entitled to under their power to judge of...